The recital of facts contained in the finding is substantially identical with the allegations of the complaint, and substantially the same questions are presented by a demurrer to the latter overruled, and by the claims of law made by the defendant upon the trial. Several questions are thus presented; but we have occasion to consider only one of them, and that the fundamental one as to whether or not the interest payment made to Ernest was wrongful as giving him something which was not his due under the provisions of his grandfather's will. It is manifest and unquestioned *Page 178 that, if these provisions entitled him to receive that interest, there was not only no breach of the bond, but also no wrong done to the testator's estate or its beneficiaries. We are thus brought to a construction of that paragraph of the will which embodies the gift in favor of Ernest.
It contains a gift of a sum of money to be paid at a future time. There are to be found in the books dicta which, taken by themselves, appear to lay down an arbitrary rule determinative of the rights of the legatee of general application to such cases. For example, Swift in his System (Vol. 1), p. 435, cited by the defendants, indicates that the legatee would be entitled to the principal sum named, together with interest. In his Digest, however, when treating of this general subject, he omits this proposition. Vol. I, s. p. 454. On the other hand, in Page's Appeal, 71 Pa. 402, 404, cited by the plaintiff, it is said that the rule, under the conditions stated, where the testator did not standin loco parentis to the legatee, is that the interest does not run upon the legacy until it falls due. The reason assigned is that "when a testator bequeaths a sum of money and fixes the time of payment, he determines by that act the precise sum to be paid at the time fixed by him." Were this premise true, the proposition stated would be its logical consequence. But it is by no means true. It certainly is not where the testator has indicated a contrary intention. The opinion itself recognizes this, or at least a limited application of the principle stated, when it proceeds to distinguish the situation before the court from one where the executors were made depositaries of a fund specially set apart for the legatee and placed in their hands for investment for her.
In the later case of Yost's Estate, 134 Pa. 426,19 A. 692, a testamentary provision substantially identical with that in the Page case came under review. *Page 179 The will contained legacies to several persons "to be paid to them, respectively, on arriving at the age of twenty-one years," together with provision for alternative disposition in case of death without issue before reaching twenty-one. The estate was ready for settlement and distribution. Two of the beneficiaries were still minors. The question arose as to whether their rights were limited to the receipt of the principal sum named in their behalf, or extended as well to the income thereon subsequent to the settlement of the estate. The court, in an opinion which made no reference to thePage case, decided in favor of the latter contention. It asserts the proposition that the question at issue was one to be determined by the testator's intent, gathered from the will and surrounding circumstances, and arrives at its conclusion upon the basis of the intent thus ascertained.
The rule thus appealed to and applied is so elemental that it requires no argument to demonstrate that the intent of the testator, gathered from the will and surrounding circumstances, is the rule of rules to be applied in determining, in any given case, the operative effect of a will in respect to a gift to take effect in possessionin futuro, as it is in respect to all other testamentary provisions, and that any dictum which overlooks it is to that extent inaccurate. The expressed intent may be that the legatee shall, at the future time named, receive the principal sum designated, and that sum only. It equally well may be the testator's intent that the principal sum shall be set aside in the distribution of his estate to be held with its accretions for the benefit of the legatee, but with the right of possession withheld from him until some future time. The intent may conceivably assume some other form, but whatever, it be, if it be sufficiently expressed and within the law, it will be effectuated. *Page 180
The construction of the will in question, as bearing upon the gift in favor of Ernest, thus becomes resolved into an inquiry as to the testator's expressed intent. The complaint contains the fifth paragraph of the will, which, and which alone, as far as appears, deals with this subject. Neither the complaint nor the record reveals the balance of the will, and the record is silent as to any facts and circumstances which might be significant of the testator's intent in the matter of his benefaction in favor of Ernest, except the latter's age. We are thus left to discover that intent from the paragraph before us, with such aid as may be supplied by the single fact of Ernest's age. Under the circumstances, we are entitled to assume, as against the parties on whose behalf the action was brought and who are controlling its prosecution, that there is nothing in the omitted provisions of the will, or in any unpleaded and unproven facts and circumstances, which would give support to a construction more favorable to them than that which results from what is presented for our consideration.
The fifth paragraph of the will begins with a bequest of $1,000 to Ernest, couched in the language of an absolute present gift to take effect in point of right unqualifiedly, and in respect to both enjoyment and possession immediately, upon the death of the testator. The qualifying language immediately following, to wit, "to be paid to him on his arriving at the age of twenty-one years," is that which would naturally occur to one who was desiring to provide for a postponement of the time when the right of possession should attach. It neither creates a contingency or condition, nor operates to delay the vesting in point of right. Dale v. White, 33 Conn. 294, 297; Newberry v. Hinman,49 Conn. 130, 132; Eldridge v. Eldridge, 63 Mass. (9 Cush.) 516, 519; Silvers v. Canary, 114 Ind. 129, 134, *Page 181 16 N.E. 166. It in no way suggests that the benefits of the fund resulting from its investment should not ultimately enure to the beneficiary; the fund simply being held for his benefit until he should become entitled to possession. It would be quite in consonance with the language that it should. The testator's purpose might, indeed, be otherwise, but such purpose is not indicated.
In this connection the minority of Ernest becomes peculiarly significant. He was not legally capable of holding and managing property personally, and would not be until he was twenty-one. A guardianship would be the anticipated consequence of a gift to him with the right of possession. What more natural course for the testator to pursue than to provide for a holding for his benefit until his incapacity should come to an end. This would appear to have been the thought which was in the testator's mind, and doubtless it was a desire on his part to make suitable provision for the period of Ernest's minority, and not one to ultimately withhold from him the full benefits of the fund designated for him, which dictated the provision postponing the right of possession.
Did the paragraph stop here, we should have little hesitation in arriving at the testator's intent with respect to his benefaction in favor of Ernest. Fortunately, however, additional light is thrown upon the matter by subsequent provisions and incidental considerations which remain to be noticed.
The paragraph concludes with a provision by force of which Ernest might, by not surviving to attain his majority, fail to enter into possession of the legacy. This provision neither militates against the vested character of the bequest in his favor nor tends to diminish that of which he, surviving, would become possessed. It embodies a condition subsequent and not precedent.Lewis v. Lewis, 74 Conn. 630, 634, 51 A. 854. *Page 182
This closing sentence of the paragraph goes further, and in it an alternative bequest is made and defined. This provision is peculiarly suggestive of the testator's purpose with respect to income, and leaves little doubt upon that subject. It is provided that upon Ernest's decease before his majority "said sum" should be divided equally among the testator's then surviving children. The event which would give to these children the right to have this sum might happen at any moment after the testator's death, or after distribution. Adequate provision for such a contingency could not be made in a distribution, except by keeping the estate in some way open until the time should arrive when the fund should become payable to a donee with the right of possession, or by the setting aside of $1,000 to be held in readiness to meet that demand. Ernest lacked seven years of his majority when the testator died. How much younger he was when the will was made does not appear. It is scarcely conceivable that the testator contemplated that the final settlement of his estate should be deferred a possible seven years, either for payment of the $1,000 legacy, or for the administration of the small sum of interest which might accrue upon that sum set apart for the satisfaction of the legacy.
All the indications thus point in one direction, and that toward an intent on the part of the testator that his estate should be settled and distributed in the ordinary course; that in such settlement and distribution the sum of $1,000 should be set apart to constitute a fund to be held, with its accumulation of income, to await the time when Ernest should attain his majority or die before reaching that age, and that upon his becoming twenty-one both the principal sum and its accumulations should be delivered over to him in absolute ownership. As no prior estate or interest in the fund was created, the program contemplated necessarily involved *Page 183 the intervention of a trust with the executor, or other person, as trustee, and with the customary incidents of a trust in the matter of income. The course pursued in the present case was a strictly correct one, and it has resulted in giving to Ernest nothing beyond what he was entitled to receive.
There is error, the judgment is set aside and the cause remanded for rendition of judgment in favor of the defendants.
In this opinion the other judges concurred.